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After a developer and a contractor had completed construction of a condominium building, they were asked back by the association to perform some warranty repairs to the exterior cladding. The building was experiencing water intrusion through the stucco exterior. The developer and contractor signed an agreement with the association which included a statement that once these repairs were completed, the association would make no further claim and release both the developer and the contractor.
Following a hurricane the next year and more water damage, the association submitted an insurance claim. When the claim wasn’t being immediately paid, the association sued the insurance company. In turn, the insurance company sued the developer and contractor for defective workmanship on the exterior cladding.
But the insurance company lost this battle. The developer and contractor produced the agreement and release they had gotten from the association, and the court agreed with them. The release they had obtained relieved both of them of further liability.
As any construction lawyer would advise you, get that release whenever you settle a claim. It will come in handy if someone pops up down the road making a claim on the same issue you already settled.
One of our readers brought something to our attention. He was intrigued with an article in Popular Science magazine describing how multistory buildings can be constructed with cross laminated timbers. With the first in London at 9 stories, and plans for a 34 story skyscraper in Stockholm, and another hi-rise made of wood in Vienna, the interest appears to be sparked by the fact that wood is cheaper, easier to assemble and more fire resistant.
Could we be seeing plyscrapers in our future, beginning to compete with more traditional skyscraper construction? For one, building with wood is supposedly safer in a fire. Where metal could melt all the way through in a blaze, a wooden plank may only char on the outside but seal the wood on the inside. And engineered wood is more advanced than ever, with cross laminated timber becoming accepted as a less expensive alternative to traditional concrete and steal construction.
But the question remains, will there be a large enough market for such buildings? Our reader thought not, and we agree.
The nine-story Stadhaud in East London, thought to be the tallest timber residential structure in the World.
An equipment repair shop went about fixing a backhoe brought in for service. After completing its work, the shop returned the equipment to its owners along with a bill for repairs. When, in a few months the shop didn’t get paid, it placed a repairman’s lien on the backhoe – recording notice of the monies it was owed. Suit was eventually filed to foreclose the lien; an open and shut case thought the repair shop. But in what should be a wakeup call for all those whose business practice has been to release items before getting paid, the court denied the lien enforcement action.
Such claims for labor or services on personal property – such as a backhoe – are possessory in nature. The court therefore found that the repair shop’s right to claim a lien was extinguished when it relinquished possession of the property it repaired. The shop needed to hold on to that backhoe until it got paid, at least if it expected to protect its lien rights.
Possession being 9/10’s of the law couldn’t be more true here.
A claim of lien may be a contractor’s last resort, often filed at the eleventh hour in an attempt to protect monies due for work performed. But prepared in a rush or not filed the right way and without the proper follow up, liens can be defective and ineffective. There are plenty of times when a construction lawyer receives a claim of lien to enforce, only to realize upon reviewing the lien that there are problems. Some missteps may be more obvious than others, and several can be fatal to the enforcement of a lien.
Here are 6 quick ways to lose your claim of lien:
Don’t make these mistakes. Know the law by downloading the #1 guide to Florida’s construction lien law, Sink or Swim: Navigating Florida’s Lien Law. You’ll learn when and how to record a construction lien that can be enforced.
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